Home|Media Releases|E-tolls: DA court application clashes with their parliamentary policy and actions of caucus members

E-tolls: DA court application clashes with their parliamentary policy and actions of caucus members

2013-11-14

Adv Anton Alberts

“The DA is dishonest with road users about their e-toll court application in Gauteng. The public’s overwhelming opposition to the e-toll system in Gauteng is being exploited in a cheap manner by the DA to draw votes in the 2014 election by turning to the court to have the E-Toll Act declared unconstitutional. This court case is however in direct conflict with the actions and comments of DA caucus members in parliament,” Adv. Anton Alberts, the Freedom Front Plus’ parliamentary spokesperson on transport says.

The leader of the DA in Gauteng, Musi Mmaimane, has brought a court application in which the court is asked to declare E-Toll Act unconstitutional because the Act was incorrectly classified as a Section 75 Bill and not as a Section 76 Bill. The facts however clearly show that Mmaimane is not expressing his party’s policy with this court application.

During a submission of Adv. Alberts in February of this year (minutes of meeting attached) in the parliamentary portfolio committee on transport, he stated for the record that the Act was incorrectly classified. According to Adv. Alberts, the E-Toll Act should have been classified as a Section 76 Act because the Act has a direct impact on the economies of provinces. The Act should therefore according to the Constitution also serve in the national Council of Provinces. The DA caucus member in the portfolio committee, Ian Ollis, clearly stated that he did not agree with Adv. Alberts and that he felt that the Act should not be classified as a Section 76 Bill, because the Bill only aims to deal with the regulation of traffic and does not have an impact on the functions and economy of the provinces.

“The facts show that the DA is not following a clear policy on the e-toll system. What that party’s caucus members do in Parliament, is dismissed by the party’s leader as mistakes as soon as it is clear that they are acting contrary to the public’s interests, as was the case with the DA’s support for the Employment Equity Amendment Bill. After the FF Plus’s request to the president to send the Act back to parliament had been declined and the party announced that it would be bringing a court application to have the E-Toll Act declared unconstitutional because it was classified incorrectly, the Gauteng DA’s launched a legal action which is in direct opposition to that party’s parliamentary policy and actions in parliament.

“The question is whether Helen Zille will now again be offering an apology to the public in which she blames her parliamentary caucus for her party’s opportunistic change in policy. The DA is trying to to run an election campaign in which the controversial e-toll system is being used to create the impression with voters that the DA is acting in their interests. The truth however shows that the DA in parliament does not represent the interests of voters when laws are made.

“The DA did not intend opposing the e-toll system any further until the FF Plus announced their legal action. Voters can therefore not trust the DA with their votes in next year’s elections,” Adv. Alberts says.

The Freedom Front presented its proposed amendments to Clauses 3, 4, 5, and 6 of the Transport Laws and Related Matters Amendment Bill [B 30B-2012] together with comments.

South African National Roads Agency Limited (SANRAL), for the Department of Transport, responded in detail.

In response to Members’ questions, the Parliamentary Legal Advisor and the Principal State Law Advisor clarified the issue of ‘interested parties’ and how the information be could be presented, either through the Government Gazette or other papers. It was proposed to proceed with caution around issues as to whether the Bill was a Section 75 or 76 Bill regarding the tagging of legislation. The Parliamentary Legal Advisor expressed surety that the Bill would pass constitutional muster.

A DA Member felt that the Bill should not be tagged as a Section 76 Bill as it regulated traffic and its intention was as such.

The Principal State Law Advisor replied that tagging was something very new in this country, so she proposed that the legal team could prepare an opinion for the Committee.

Adv A Alberts (FF+) presented the proposed amendments to Clauses 3, 4, 5, and 6 together with comments. (See attached document for details of the proposed amendments).

Discussion Department of Transport response: Ad Clause 3: add the following words at the end of the inserted clause (bA) found in Clause 3(b): ‘…and all of the interested persons referred to in subsection 4(a)(ii)’

Ms Alta Swanepoel, Consultant: South African National Roads Agency Limited (SANRAL) expressed disagreement with the amendment to Clause 3 as it would prove to be an onerous provision. As was seen with previous amendments that had been published, many interested parties sometimes responded in a non-detailed manner. If the requirement was that every person had to be given a copy of documentation it would make the entire process very onerous; the promotion of access to information legislation applied to everything that SANRAL did and it was its submission that any person who had made comments would be able to get that documentation. Having it as part of the legislation

Ad Clause 3: inserting the following word in the substituted subsection 4(c)(ii): ‘the extent to which any matters raised in those comments and representation contemplated in subsection 4(a)(ii) have been accommodated’

SANRAL’s submission was that it was unnecessary as the comments that were required were already in the introductory paragraph and it was linked to that paragraph as well, The comments received were the ones that needed to be addressed in the report so it would not really add anything to that clause if that was added to it.

Ad Clause 3: add the following words in the substituted Clause 4(c)(iii): ‘the steps proposed to mitigate against the impact or likely impact on the local and national economy and on alternative roads….’

Ms Swanepoel said that that here there should be mitigating factors as far as the local and national economy were concerned, and this statement was vague and one would be able to continue to challenge this. In the declaration of the new toll roads there would always be something additional that could be challenged and that could be addressed in the report. This would make the declaration of future toll roads virtually impossible if the sentence was added in its current format where it did not place any parameters on what was considered as far as the local and national economy was concerned.

Ad Clause 4 deleting subsection (dC)(iii) and correcting the further numbering of (dC)(iv) to (dC)(iii) and (dC)(v) to (dC)(iv)

SANRAL submitted that the main offence of the failure to pay a toll had already been included in the SANRAL Act Section 27(5). The idea of the subparagraph was simply to add additional requirements, (e.g. a person who had an e- tag that may only be used for a specific vehicle) If he/she changed the e-tag to another vehicle, the system would not work properly. One would want to make that an offence. The idea of that subsection in the legislation was to allow the Minister to elaborate on the Section 27(5) offence of the failure to pay toll. It was not a road traffic related offence.

Ad Clause 5: deleting the inserted subsection 59A(1)(b).

SANRAL submitted that a court had already investigated the constitutionality in this regard and the wording in this legislation was similar.

The only addition was the extent to which it also applied to civil cases. The SANRAL Act allowed for both a criminal and civil process to be followed if someone failed to pay the toll. The alternative to having a presumption was to stop people at the roadside to get the information from them. The intention of the legislator was obviously not to have to deal with every person in that regard. The presumption did not place any addition burdens on anyone; the current road traffic legislation already contained such a provision. It already required that the owner be held responsible for the vehicle in event that he or she could not supply the details of the driver. This legislation simply gave the owner the opportunity to transfer the toll to the user if she or he was not the person responsible. The provision should stay in the legislation as it was.

Ad Clause 6:deleting Section 6 of the Bill

SANRAL submitted that ton various occasions the Department and SANRAL had obtained legal opinion, but the National Credit Act (No. 34 of 2005) applied to credit agreements. The toll legislation catered for a pre-paid system; it did not cater for a system where people were allowed to pay as if on a credit agreement and where investigations had to be done in terms of viability to pay. It was a prepaid system that allowed for a seven- day grace period. Therefore it did not fall within the ambit of the National Credit Act. The only reason why it was felt that it was necessary to put it into the legislation was to clarify that point. Due to numerous comments received as far as the National Credit Act was concerned and because of negotiations with the organisations, it was clear that it was necessary to state that specifically so that people did not feel that they fell under that legislation. If people did not pay it was not because SANRAL granted them an agreement to allow for payment in 60 days or 90 days for example. The toll system was a pre-payment system and there was a grace period to ensure that people were not unnecessarily burdened and had the opportunity to pay if they had used the road and realised they should have paid. It was not a system where people were being investigated as far as their credibility was concerned so that they could pay afterwards. If the Clause were deleted from the Draft Bill it would make no difference as far as the legal position was concerned.

Parliamentary Legal Advisor (PLA) response Adv Charmaine van der Merwe , PLA , said that amendments 1 and 2 related to ‘interested person’ and in the end it was a matter of policy. What should be kept in mind was that the Department had said that it would be more onerous. If this were included a specific method would have to be recommended in which this publication should be done. For

instance, if these comments had to be brought to the attention of interested parties, it could be put in the Government Gazette or published in a paper. It would be very difficult for the Department to respond to every person. It was a policy decision, and there was no legal pro or con except for that. It should be remembered that it might be onerous.

Ad Clause 3: add the following words in the substituted Clause 4(c)(iii): ‘the steps proposed to mitigate against the impact or likely impact on the local and national economy and on alternative roads….’

Here the Committee had at one stage considered the wording ‘socio-economic impact’. In fact if one looked at Clause 3 on page 3 of the Bill 30B, paragraph (b) which inserted sub-paragraph (bA), one could see that there an impact assessment of socio-economic and traffic was looked at. The wording of this paragraph that the Freedom Front had requested required that one should step very carefully because the Constitution provided that Road Traffic regulation fell under Schedule 4 which made the legislation a Section 76 Bill. Caution was required here as to the wording and it was recommended that one might amend that sub-section by reference to paragraph (bA). It was vague to mention the local and national economy because that was quite broad. But if the socio-economic impact was referred to specifically, that link had already been created there.

Ad Clause: deleting subsection (dC)(iii) and correcting the further numbering of (dC)(iv) to (dC)(iii) and (dC)(v) to (dC)(iv)

With regard to decriminalisation, caution was required here because there could be a very good argument that a toll could not to be equated with tax because there were many differences between them. It was much more like a tax or levy than a debt because what one was paying for was the use of a local road or provincial road. It was something that had to be maintained by the money put in. It was slightly different from the normal debt situation. There was an argument for both sides but not to the extent that an amendment was needed.

Ad Clause 5: deleting the inserted subsection 59A(1)(b). The PLA was agreement that this had already been provided for and the Committee had already debated this last year. It was explained to the Committee that the toll camera would see a vehicle, not necessarily a face, so it was very difficult to prosecute, and the intention here was not to put an undue onus on the person being brought to court, it was to allow someone to be brought before a court.

The PLA was in agreement with the Department with regard to Clause 6, regarding the National Credit Act.

The Principal State Law Advisor’s (PSLA) response : Adv Suraya Williams , PSLA, said that a written response had already been provided to Adv Alberts. Many issues had already raised by colleagues from the PLA and the Department. With regard to the comment about ‘notifying all interested persons’ the important question was - who were these interested persons? Were they limited only to ‘interested persons’ who commented’ or interested persons who were invited to comment? Interested persons had different interpretations just from a practical perspective. What was needed was to find out which interested persons were involved. What was the objective in informing interested persons?

The issue of offences and penalties related to the non-payment of tolls was already dealt with in the Principal Act.

Discussion Mr L Suka (ANC) acknowledged the cautions issued by Adv van der Merwe and asked for further guidance from the legal team. He said he was covered regarding issues of debt and criminalisation.

Mr Suka asked if more input was needed about the Act. The character of tagging had to be changed because a Section 76 Bill was spoken about. This related to local and provincial government and accompanying changes to tagging. The principal Act was very clear regarding the question of a Section 76 Bill.

Adv van der Merwe , PLA , replied that, with regard to the tagging issue, there was an argument for both sides. When and if emendations were made, care should be taken not to step into that ‘hole’ associated with the Section 76 Bill. She anticipated that it was going to be contentious bill.

Adv Williams , PSLA , replied that many debates had taken place with the Department and the Parliamentary Legal Advisor regarding the tagging of the legislation. This involved fine-tuning, crafting the correct terminology and using the correct words to ensure that it was kept within the parameters of a Section 75 Bill. The Department wanted to keep it as a Section 75 Bill and also to avoid the situation of two bills, a Section 75 Bill and a Section 76 Bill which dealt with similar matters. Here Schedule 5 of the Constitution was referred to which dealt with provincial roads and traffic.

Mr I Ollis (DA) said that the issue of the national economic impact and the socio-economic impact were already in the

Adv Williams , PSLA , stated that with regard to the socio-economic impact, the intention was to keep it a Section 75 Bill so that the office of the State Law Advisors could be satisfied that the Bill would pass Constitutional muster.

Mr Ollis said that he was unhappy about the presumption clause and asked for more information about cloned number plates.

Ms Swanepoel replied that as far as presumptions were concerned, SANRAL legislation allowed for the possibility to register with number plates and get an e-tag. This was the safest and quickest route to ensure that if someone cloned a number plate the person would not be charged for that specific toll transaction because every e-tag was linked to a specific vehicle and the system was set up in such a manner that if additional number plates existed with the same number, this would be detected. The system also had three photographs of every vehicle which allowed for the possibility of representing different characteristics. The system was sophisticated enough to detect differences.

Ms Swanepoel stated that Depart of Transport was busy preparing legislation which allowed for the use of cell phones and bank account numbers for proof of address details when registering on the system.

Mr Alex van Niekerk, SANRAL Manager: Toll and Traffic, the South African National Roads Agency replied that a solution existed regarding the situation of cloned number plates in the form of tagging the vehicle so that it had a separate identity which could not be cloned. This was also the cheapest way to make payment. The system also made provision for people to nominate or make representation about cloned number plates. The system made provision to make representation to SANRAL to say that they suspected a cloned number plate. Law enforcement agencies would also assist in this regard. In many cases the problem was overstated.

Adv van der Merwe, PLA , said that with regard to the cloning of plates, a notice had to be requested and it was just a matter of presenting the correct facts.

Mr Ollis asked for a response on issues of the constitutionality of certain clauses, and what were the possibilities of having constitutional challenges to certain issues.

Adv van der Merwe , PLA , replied that the possibility of constitutional challenges always existed because there would always be people who would try to take on matters constitutionally. She did not foresee any success in the current challenges. The Bill was currently constitutional.

Adv Williams , PSLA , replied that now everything had to be interpreted constitutionally. There should not be too much fear about this. If something was glaringly unconstitutional then it could be sorted out here. Things could be developed constitutionally.

Mr Ollis asked why the Government Gazette was not used for sharing information. He stated that he accepted the explanation about informing everyone, but this begged the question as to why the Government Gazette could not be used for publication purposes. If the Department was honest and did not intend to hide political fallout, then why not publish in the Government Gazette . The political parties in power did not like to give documents to the other parties; therefore the Government Gazette would be ideal because information could not be hidden.

Mr Van Niekerk said that information about socio-economic impact studies was made available on the organisation’s website. If one looked at the process in terms of Section 27 for the declaration of a toll rate, then it was and should be made available to the public at the time when the declaration process had been gone through and not after the event.

Adv Adam Masombuka, Department of Transport Chief Director: Legal Services said that info was not confidential and he agreed that a general notice could be issued directing members to the website of SANRAL for information.

The Chairperson asked Mr Ollis if he was covered by the response.

Mr Ollis said that he was happy with the procedure if the whole document was loaded on the website and a notice was published in the Government Gazette . He expressed uncertainty about where this decision would be recorded, if the Act had to be amended, or if a special resolution had to be passed.

Adv Alberts (FF+) said that it should be in the Act. Socio-economic impact studies should be made available to the public and a publication by SANRAL should include all impact studies. Previously people had to go to court get information from SANRAL. There has to be obedience to the Constitution, Mr van Niekerk’s proposal was a good one and it should be codified in the Act.

Adv Williams , PSLA , said that public information, participation and access to information were central to our democracy. A decision needed to be taken as to how to do it. Public participation was central to the Constitution but

Mr Ollis said that the DA reserved its right as an independent party so he was not agreeing or disagreeing with any other party. Very strong disagreement was expressed with the previous comments because the DA had been trying in excess of the past five years, through every possible avenue in the Republic of South Africa, to get sufficient information in contract documents [a copy of the Gautre in contract documents]. The DA had even gone to court where instructions were given that the documents could and should be made available for access. They were shown a room full of documents and were instructed not to touch them. It was impossible to get access to information in this country and the current processes were totally inadequate. The reason why it had to be spelt out in the law is because this government refused to make many documents available. So these things needed to put in law and to be codified. Some processes in this country were a white wash. We should not sit here in Parliament and pretend that public participation was done well in this country and that it was easy to get information.

The Chairperson said that public participation came when the ANC assumed power. There was no transparency in the previous government; therefore a policy issued could be distinguished from a practice of individuals. Argument should be based on the policy of the government. It was a different if practice did not relate to the policy of the government. One should then look at what could be done about that situation. One should not make assertions in this meeting that denied the ANC government’s development and propagation of the public participation policy. One should look at what gaps needed to be closed and how to close the gaps.

Mr Suka said he was covered by the input of the Chairperson. He respected the input from the Freedom Front Plus.

Mr G Krumbock (DA) said that he did not think that who did what when should be spoken about in this meeting. He asked the presenters if there would be any difficulties in principle for the legal advisors to make it easier for people to have access to information by codifying it through legislation. It was not necessary to get into whether it was or was not difficult in the past. It did not deny anybody anything to put it into legislation. It was important to look at how to put it into the legislation to allow easy access to the information.

Adv van der Merwe , (PLA , said that she did not see any problem in including something in this Bill. The wording had to be thought through and the Committee could guide the process to say that the impact assessment should be published in the Government Gazette . If the document was too thick then a notice could be published in the Government Gazette to draw attention to where the document could be found.

The Chairperson asked Adv van der Merwe , PLA , and Adv Williams , PSLA , to work together to draft a proposed insertion into the Bill which legislated public access to information. The team would have 15 minutes to prepare and present the proposal to the meeting.

Mr Ollis said that he was happy with the new proposal.

Mr Suka said that all his concerns were covered and that he was in agreement with the proposal.

Adv Masombuka said that he was happy with the proposal.

The Principal State Law Advisor briefed the Committee on the proposal. (See document - Proposed Amendments to Section 27 of Act 7 of 1998)

The Committee expressed satisfaction with the proposal.

The Chairperson proposed to meet on 26 February to adopt its report on this bill - the Transport Laws and Related Matters Amendment Bill [B 30B-2012].

The Committee agreed.

The Chairperson said that Adv Alberts had asked for an opportunity to address the meeting about his proposed amendments to the Transport Laws and Related Matters Amendment Bill [B 30B-2012]. She granted this request.

Adv Alberts’ response Clause 2 He was happy with the explanations given on Clause 2.

Clause 3 Reference was not made to the local economy, just the economy in general. He just wanted to issue a caution that

whatever was done here would touch on local and provincial economies and of course matters related to powers. The Committee should consider whether Section 76 was not the appropriate way to go. Challenges might arise which would mean that the whole process had to be restarted.

Clause 4 Mr Alberts agreed that the SANRAL Act criminalised conduct and this Bill dealt with criminalisation itself. This was quite in order, but the decriminalisation process in terms of road traffic offences that was currently happening should be considered. This might lead to future constitutional challenge on the offences created in the SANRAL Act itself. This was just mentioned for the Committee to take note of.

Clause 6 This disallowed the application of the National Credit Act. There might be a part of the National Credit Act which actually did have relevance to SANRAL’s E-toll operation. This was when some persons decided not to buy the e-tag. SANRAL implicitly then gave credit to them and they could pay later. According to the interpretations of the National Credit Act, that would entail a credit agreement and the Credit Act would be applicable. Therefore this related to his arguments that the National Credit Act needed to be applicable to everyone including the government. Therefore the National Credit Act should be amended and it should be explicitly stated in Schedule 1 of the National Credit Act that the SANRAL Act would have precedence in this case. This proposed amendment of the Bill needed to be challenged itself. Without amending the National Credit Act, this proposed amendment of the Bill itself stood to be challenged.

Discussion Adv Williams , PSLA , replied that if so desired one could prepare a written opinion for the Committee before the end of the week after thoroughly interrogating the National Credit Act and the Consumer Protection Act (No. 68 of 2008).

Mr Suka agreed that this matter would be discussed next Tuesday, 26 February 2013.

The Chairperson expressed agreement with the manner in which Adv Williams , PSLA , had addressed this question, and said it was a sufficient response.

Mr Ollis felt that the Bill should not be tagged as a Section 76 Bill as it regulated traffic and its intention was as such.

Adv Williams replied that tagging was something very new in this country, so she proposed that the legal team could prepare an opinion for the Committee. This could be added to opinion agreed upon earlier.

Adv van der Merwe , PLA , agreed with Adv Williams , PSLA , on the matter. She reiterated that this matter should be approached with caution. The Bill was fine and should not be ventured into in a substantial matter. The matter had been debated.

Adv Alberts asked for permission to see the report from legal advisors on this issue.

The Chairperson said this area had been thoroughly debated and the majority of the Members were fine with the outcome. The discussion would be continued on 26 February. She thanked Adv Alberts for the presentation.